September 22, 2006

Ruhl on the Hierarchy of Legal Scholarship

J.B. Ruhl has a really great post on Jurisdynamics entitled The Hierarchy of Legal Scholarship. He ranks categories of scholarship from 0 (least significant) to 10 (most significant). Here are his categories:

Good clean fun. It won't surprise regular readers of LTB that I wouldn't quite agree. Initially, the whole idea of such a list, while amusing, assumes that there is a meaningful hierarchy. Moreover, Ruhl's categories are conceptually odd. Some of the distinctions are explicitly normative. Categories 0 and 1 are differentiated by quality, as are categories 2 and 3. Other categories go the methodology, e.g. the distinction between 6 and 8. And then one methodology, empirical study of law is elevated to the top two rungs of the hierarchy, 9 and 10.

If we really want to rank importance or quality of legal scholarship, the criteria will be multidimensional and at least partially incommensurable. At the very top will be research projects that fundamentally transform the way we we study law--the clearest example in the history of modern legal thought is Bentham's project, which reconceptualized the nature of law along postivist lines and reworked normative legal theory into utilitarianism. Indeed, Ruhl's hierarchy is actually a legacy of Bentham's project--with Ruhl implicitly relying on a Benthamite conception of the purpose of legal theory in constructing his categories and his rankings.

Here are some additional examples of transformative legal scholarship. Coase's work --on mutliple problems but especially on transaction costs and the theory of the firm--would be another example of transformative scholarship. So would Hohfeld's work on the structure of legal norms, Holmes's protorealist theorizing, and Dworkin's normative theorizing (distinguished from his work on the nature of law). Even doctrinal work can be transformative--McKinnon's work on sexual harassment and hostile workplace environment in antidiscrimination law is an example.

It is rare for empirical work to have this kind of influence--empirical studies of law can only be transformative if they are integrated into a normative paradigm. I'm a big fan of empirical legal studies, but their significance is derivative of theoretical work on legal instrumentalism and normative work on consequentialism in normative legal theory. And even within the domain of empirical work, creativity and generative potential are important in assessing importance. Many empirical studies add very little useful knowledge, while the best empirical work changes the way we investigate legal institutions or their consequences.

My apologies to Ruhl--blindly following Dale Carpenter I attributed his post to Jim Chen! But I wonder what Jim thinks. And thanks to Dale for the link!